1. The only point argued in this second appeal is whether Ex. I is a Will or a deed of gift. The District Munsif held that Ex. I was not a Will, but the Subordinate Judge on appeal held that it was a Will.
2. Exhibit I was executed on 9th January 1898 by one Subramania Pillai aged 26 years, who was then residing in a village in Nannilam taluk, Tanjore District. On the date of the execution of the Will he was suffering from cholera and his condition was serious. He wanted to make a provision for the performance of his obsequies and also for the obsequies of his mother. Under this document he gave some property to his nephew Chidambaram and some other property to one Iyyaru another nephew; he gave some property to his mother to be enjoyed for life and some property he gave for some charity. The contention of the appellant is that the document is a deed of gift, and not having been registered, it cannot take effect. In construing a document of this kind the whole of the document should be taken into consideration. The document begins with the words; 'The deed of Will or Will document executed in sound mind on the 9th January 1898 by me Subramania Pillai' etc. And it goes on to say: 'As it appears to me that there is no hope of my surviving the attack of cholera, as I am not yet married and as methinks that I should make the necessary arrangements re my family, as my mother who is living with me is alive and in order, that for my benefit in the other world my obsequies may be done in the capacity of a son, and that my family may multiply... Chidambaram... shall as he is now my heir perform by himself all my obsequies.' At the end of the Will there is this clause: 'This is the deed of Will that I executed in sound mind.' The document is headed as a Will and all the usual averments in a Will are there such as that he is a man in a sound state of mind and that he does not expect to survive the attack of chotera; and that he wants to make necessary arrangements. At the end of the Will there is a statement that he is of sound mind. Heading the document as a whole it appears that Subramania Pillai wanted to dispose of his property by a Will. The document is engrossed on plain paper, and it is not registered. It is also in evidence that no attempt was made to get it registered after the death of Subramania Pillai which took place about two days after the date of the Will. The District Munsif who in para. 5 of his judgment enumerated various facts going to show that the document was a Will and who at the close of that paragraph was of opinion that the arguments in favour of its being construed as a Will preponderated over those in favour of its construction as a gift, was greatly influenced in his decision by the conduct of the defendants in putting forward a gift in the lifetime of Subramania Pillai in their favour. In his written statement the 2nd defendant stated that there was a gift by Subramania Pillai to him and that he got into possession on the date of the gift. Subsequently an additional written statement was put in which the 2nd defendant specifically pleaded that the document was a Will and that he got the properties under the Will. In construing a document of that kind the conduct of the parties subsequent to the date of the document should not be taken into consideration. Their understanding of the document should not ordinarily influence the Court unless it gives a clue to the meaning of any expression one way or the other which is not clear. No doubt the conduct of the parties prior to the execution of the document or at the time of the execution of the document may be of some evidence, if for instance evidence is forthcoming that the 2nd defendant or somebody on his behalf was actually put in possession and Subramania Pillai divested himself of the possession of these properties, it may be of some use in helping the Court to construe the document. But where no such facts are forthcoming, I do not think the Court would be justified in attaching any weight to the way in which the parties understood the purport of the document; and importance should not be attached to the contention put forward by a party as a deciding factor in coming to the conclusion whether a document is a Will or a gift. It is mainly upon this consideration that the District Munsif based his opinion that Ex. I was not a Will. The Subordinate Judge has, in a very elaborate judgment, come to the conclusion that Ex. I is a Will.
3. Mr. Vinayaka Rao on behalf of the appellant has strongly relied upon the following recitals in Ex. I, as tending to show that the executant intended it to be a deed of gift. 'I have even now given away to Iyyaru son of Kamakshi my deceased eldest sister. He is to collect it together with interest in any manner such as through Court.' 'I have given away even now that Chidambaram the son of my elder sister may take over and enjoy for ever from posterity to posterity.' He also relies upon the wording in the document as regards the gift in favour of the temple. There is nothing in the document to show that Chidambaram was actually put in possession of the property on the date of the execution of the document. The mere fact that the testator uses the present tense would not make a Will a deed of gift. If he had used the English words. 'I give or I bequeath' it could not be contended that that would make it a deed of gift. Subramania Pillai was, according to the statement in the Will in a very serious condition, and there was no hope of his surviving the attack of cholera, and that he was anxious that he should provide for his welfare 'in the other world.' This being the state of his mind, the mere fact that he uses the present tense for the purpose of giving emphasis to the bequest that he was making should not be construed to mean that he was making an actual gift of the properties. He has disposed of all his properties by this document. There is nothing to show that he reserved anything for himself. If Subramania Pillai was making a gift of his property, is it likely that he would have divested himself of all his properties. If he recovered from the attack of cholera it would not be possible for him to get back the property; and further five or six persons who attested the Will and the writer of the Will were present at the time of the execution and it is difficult to see why if a gift was intended none of them suggested the idea of buying a stamp paper and engrossing a proper gift deed. He could not have been too ill to register a document, seeing that he died two days after. It is unnecessary to re-capitulate what the District Munsif has very carefully stated in para. 5 of his judgment as circumstances tending to show that Ex, I is a Will. Mr. Vinayaka Rao wanted to rely upon a number of cases for the purpose of making out that Ex. I should be construed as a deed of gift and not as a Will. As I have observed in more cases than one, it is not proper that the Court should interpret one document in the light of the recitals of another document. But if the decisions have laid down certain principles of construction, such principles should be considered in interpreting a document In this case it is clear that the executant intended it to be a Will and if there are expressions here and there which might savour of a different intention they cannot be taken into consideration as negativing the main intention of the document. As observed by Ayling, J., in In re Karadi Veerabhadrappa 12 Ind. Cas. 175 I do not think that a loosely worded expression of this kind should be interpreted as altering the obvious intention of the document. The language of the document in that case closely resembles the language of the present document. The learned Judge held that that document was a Will and not a gift. There also the executant was suffering from plague and was in a critical condition, and he disposed of all the property in favour of the, legatee. There was a recital in the document that all the properties and the documents were handed over to the legatee, notwithstanding that the learned Judge held that it was a Will. In this case there is no mention of the handing over of any document to any of the persons mentioned in the Will. Nor is there any mention, as I have already stated of any of the properties being actually put in possession of anyone of the legatees under the Will. It is unnecessary in the view I have taken to consider in detail the cases relied upon by Mr. Vinayaka Rao. The case in Krishnaswami Odayan v. Kamalambal Ammal 22 Ind. Cas. 661 is distinguishable on the facts. In that case the document was headed Will inam deed. The executant was not in expectation of death. He lived for 10 years after the execution of the document. The management of the property was handed over on the date of the execution of the document to the donee and there was a provision in the document for the executant being maintained during his lifetime. On account of the difference of opinion between Ayling, J., and Napier, J., the matter came up before a Bench of three Judges who held that the document was not a Will though it was headed 'Will.' But the circumstances brought out in evidence in that case quite clearly showed that the executant divested himself of all the properties and actually handed them over to the donees and though he lived for 10 years after the date of the document, he never got possession. As observed by Sir J.P. Widdle in the case reported as In the goods of Robinson (1867) 1 P. 384 one of the tests to be applied for the purpose of seeing whether the document is a Will or not is whether it is revocable. If the document is revocable it must be construed as a Will. Is there anything in this document to show that Subramania Pillai did anything which he could not have revoked? The case in Mahadeva Iyer v. Sankara Subaramania Iyer 12 Ind. Cas. 546 does not help the appellant. There the document was a registered one and under the document certain charitable trusts were created. It was held that the document was irrevocable and did not operate as a Will; The case in Umrao Singh v. Lachhman Singh 10 Ind. Cas. 285 : 15 C.W.N.497 : 8 A.L.J. 465 : 13 C.L.J. 519 : (1911) 2 M.W.N. 242 was a family arrangement which was embodied in a registered document. There also the arrangement was an irrevocable one. The case in Udai Raj Singh v. Bhagwan Baksh Singh 6 Ind. Cas. 279 : 7 M.L.T. 410 : 13 C.O. 172 is of some help to the respondent. Their Lordships of the Privy Council held that though there were certain expressions in the Will which were not quite suitable to the character of the document, yet they held that the document was a testamentary instrument. Stray words here and there should not be so construed as to override the main intention of the document. This is quite clear from the decision of their Lordships of the Privy Council in Thakur Ishri Singh v. Thakur Baldeo Singh 11 I.A. 135 : 4 Sar. P.C.J. 528 Rafique & Jackson's P.C. No. 79 : 5 Ind. Dec.531 Lord Hobhouse in delivering the judgment of their Lordships observes at page 801; 'If they had been the words of an English conveyancer preparing an English instrument, they would have afforded a very strong argument; but the instrument was prepared by Lal Sundar, and we must not construe with too great nicety, or assign too much weight to the exact words that he uses for a transfer of the property, as if we were accurately weighing the difference between a testamentary instrument and one operating inter vivos.' In the present case the document was evidently prepared without the help of any legal adviser; and the expression 'I have even now given away to Iyyaru' and the words 'I have given away even now that Chidambaram, the son of my elder sister, may take over and enjoy for ever, from posterity to posterity' should not be held to control the general intention of the document. As I have said, the testator for the sake of emphasis has used the present tense, and that should not be held to mean that he made a gift of the properties to the persons mentioned in the Will. There are no words used here to indicate that a gift was intended. If it was a gift one would have naturally expected the use of appropriate words. Taking all the circumstances into consideration, I have no hesitation in holding that Ex. I is a Will.
4. In the result the second appeal fails and is dismissed with costs.